July 27, 2012

Who Copied Whom? The Days Leading Up To Apple vs Samsung

The road leading to the great US case of Apple v Samsung has already been a spectacular one, full of twists and turns, injunctions and revelations. For instance, Samsung has already had injunctions placed on 2 of their devices, depositions have been revealed wherein Jony Ive said Apple had been working on the iPad as early as 2002, and courts higher than Lucy Koh´s District court have stepped in more than once to overturn her rulings.

This case has it all: Drama, intrigue and endless, mind numbing patent complaints.

As you no doubt remember, Apple started off this entire scuffle last year when they sued Samsung for “slavishly copying” their designs, saying the Galaxy Tab 10.1 and some of their smartphones looked a little too much like Apple´s products.

Today in a pair of reports from All Things D, John Paczkowski takes a look at the trial briefs from both companies and it looks as if they´ll both start out of the gate pointing fingers.

Apple says Samsung not only stole their designs with their smartphones and tablets, they did so knowingly, as other designers told them their products looked too similarly to Apple´s. Samsung, on the other hand, is claiming that a 2006 interview with a Sony designer influenced the design of the first iPhone.

When Apple begins their case against Samsung, they plan to use the Korean companies own research and words against them. According to Apple, Samsung not only knew that their products looked like the iconic iDevices, they even discussed this fact internally.

“Samsung´s documents show the similarity of Samsung´s products is no accident or, as Samsung would have it, a ℠natural evolution,´” says Apple in their brief.

“Rather, it results from Samsung´s deliberate plan to free-ride on the iPhone´s and iPad´s extraordinary success by copying their iconic designs and intuitive user interface. Apple will rely on Samsung´s own documents, which tell an unambiguous story.”

According to Apple´s brief, Samsung had been warned not once, not twice, but three times that their P1 and P3 tablets (Or Galaxy Tab and Galaxy Tab 10.1, respectively) looked too much like the iPad.

Believe it or not, Google pointed it out first, telling Samsung in February 2010 that they demanded a “distinguishable design vis-Ã -vis the iPad for the P3.”

Samsung´s own Product Design Group pointed out in 2011 that their Galaxy S “looks familiar” to some of the older iPhone models. Later, famous designers told the Korean company that the Galaxy S “looked like it copied the iPhone too much,” and called for greater innovation. These designers were speaking as a part of a formal, Samsung-sponsored evaluation of their devices. According to these designers, “[a]ll you have to do is cover up the Samsung logo and it´s difficult to find anything different from the iPhone.”

Samsung isn´t taking this evidence lying down, of course. Rather than refute these claims, Samsung seems to be responding by saying Apple copies just as much as they do, pointing to a 2006 Businessweek interview with Sony designers Takashi Ashida and Yujin Morisawa. Samsung claims this article was passed around internally at Apple, from then Senior Vice President Tony Fadell to Steve Jobs and finally to Jony Ive. Samsung says this article inspired the Apple team as they asked their designers to start drawing up the device. According to their trial brief, Samsung tells the iPhone creation story this way:

“Right after this article was circulated internally, Apple industrial designer Shin Nishibori was directed to prepare a 'Sony-like' design for an Apple phone and then had CAD drawings and a three-dimensional model prepared. Confirming the origin of the design, these internal Apple CAD drawings prepared at Mr. Nishibori℠s direction even had the “Sony” name prominently emblazoned on the phone design“¦”

“Soon afterward, on March 8, 2006, Apple designer Richard Howarth reported that, in contrast to another internal design that was then under consideration, Mr. Nishibori℠s 'Sony-style' design enabled 'a much smaller-looking product with a much nicer shape to have next to your ear and in your pocket' and had greater 'size and shape/comfort benefits." As Mr. Nishibori has confirmed in deposition testimony, this “Sony-style” design he prepared changed the course of the project that yielded the final iPhone design.”

In the 2006 interview, Morisawa is asked, “How much did the iPod influence your design?”

He answered, “Most other players have a screen and buttons. My first mock-up didn´t have buttons. I didn´t want buttons.”

Samsung claims Morisawa´s answer is what inspired Nishibori to draw the Sony-style mockup which greatly influenced the final outcome of the iPhone.

Essentially, Samsung is accusing Apple of being inspired by the comments of a designer who was inspired by one of Apple´s most popular designs. What´s more, Samsung´s arguments don´t seem to refute the fact that they copied any Apple designs, rather it seems their argument is that they, too, could have copied Sony, same as Apple.

In fact, Samsung even goes so far as to claim they did copy other designs, saying in their brief, “Samsung has used the very same public domain design concepts that Apple borrowed from other competitors, including Sony, to develop the iPhone.”

This entire case doesn´t just revolve around “Who copied whom,” of course. Apple is also seeking payment from Samsung to the tune of $2.525 billion in lost Apple profits and Un-fairly gained profits by Samsung.

According to some Apple court documents, Apple “conservatively” estimates that Samsung´s violation of their intellectual property has cost them at least $500 million.

The rest of the $2 billion is mapped out in a per unit, per patent basis. Topping it all off, Apple has said they feel they´re paying too much to Samsung for the royalties to use their FRAND 3G patents. Currently Apple pays 2.4% of every 3G device sold to Samsung for the use of the patents. After the trial is settled, Apple hopes to get this payment down to less than half a percent per device, saying they should only have to pay for the part of the patent they use, rather than paying a royalty for the entire device.